Book Review: How To Fix Copyright by William Patry

William Patry’s latest book on copyright is titled How To Fix Copyright.  It’s a well written book that expresses a view of copyright policy drawn from its historical purpose—to promote the useful arts and sciences and encourage creativity.  What we have instead are laws that protect mass marketers who seek stricter controls on their copyrights through term extensions and legally enforceable controls on how intellectual property can be used, specifically with digital goods.   He demonstrates through multiple examples how current law does not in fact encourage creativity at all.  Rather, the economic value of most copyrighted works diminishes significantly after the first few years of availability.  Locking them up for well over 100 years or more does nothing to encourage new creative works based on these earlier, protected works.

None of this, however, stops governments or multinational distributors from using arguments based on artists’ rights, protecting creativity, and other emotional appeals to pass favorable laws.  The legislative environment that Patry identifies is one where government aligns its interests with intellectual property businesses, happily accepting industry statements on levels of job creation and how piracy is depriving the industry of billions of dollars.  The claims, however, are greatly exaggerated.  Government researchers accept unverified figures from industry provided sources and integrate them into their own reports.  This lends a veneer of truth to the “dire” need to help the media distributors with new laws.  The reality is that this has more to do with protecting old ways of doing business than innovating in a digital market.  Patry documents this quite effectively throughout the book via copious notes at the end of each chapter. 

How To Fix Copyright was written in 2011 and though it does not mention PIPA or SOPA, it very much predicts the process under which this legislation is considered.  Trade associations and media companies want to protect their markets by asking for tougher laws on piracy.  Bills are written heavily favoring industry.  Congress sets up hearings that are presented by proponents as a balanced look at the problem but are in reality one-sided affairs that give the companies’ what they want.  The House Judiciary Committee considering SOPA held a hearing that gave voice to only one opponent of the Act as written.  The Act would have passed if everything had gone according to script.  But it did not.  The mass statement of displeasure emanating from the Internet managed to make passage a political football no one wanted to touch.  That didn’t stop RIAA head Cary Sherman from calling the various protests against the bills by Internet sites a “gimmick” or “an abuse of power.”  The irony is palpable given the diminished due process rights SOPA gives to targeted sites for contesting seizure and shut down.     

Patry does not promote a world where piracy would be the norm.  The intellectual property market today is defined by artificial scarcity that is supposed to drive up demand.  That demand, however, competes with unauthorized sources that are either less expensive and/or more convenient for the consumer.  Pressing for more laws to further criminalizing these outlets will not necessarily stop the underlying problem.  Rather, Patry calls for a market that actually respond to demand by supplying what consumers want at reasonable prices and laws that incentivize that market.  This would conceivably make everyone happy by giving people what they want and in turn make boatloads of money for the distributors.  Patry cites study after study supporting that view.  Some of these are conducted by independent entities who actually try to quantify the level of damage to industry caused by piracy.  It is a problem, but not necessarily one that requires ham-fisted legislation such as SOPA. 

So, how would Patry fix copyright?  He suggests that Congress, or any national legislative body should consider the real purpose of copyright and pass laws that align with it.  An industry wish list does not always coincide with promoting the useful arts and sciences.  Extended terms for copyright should be brought back to a balance where an individual (or corporation) mines the work for value but doesn’t prevent the public from exploiting it at some point.  This type of balance would address the problem of orphan works, still under copyright but unavailable of exploitation.  Longer copyright terms only exacerbate the problem. 

Another suggestion is to stop vilifying fair use.  There has to be situations where some uses do not involve licensing or handing over cash.  He uses examples where artists are prevented from creating new art by sampling older works.  Record labels will not distribute tracks that incorporate short samples of older works unless cleared by the original artists.  One of his examples is telling.  Danger Mouse created an album (The Grey Album) that used vocal tracks by Jay-Z and mixed samples of the Beatles as the backing music.  The record companies involved sought court orders preventing its distribution.  Jay-Z and Paul McCartney had no problems with the record.  It became an underground hit through free distribution.  The Grey Album could have made plenty of money for everyone, but for the reaction of the source material distributors.  The Grey Album was creative, something copyright law is supposed to advance.  It floats around the Internet still.  Wouldn’t it have been better if the law supported a mechanism for everyone to get paid without having to ask for permission in advance?

How To Fix Copyright (ISBN 9780199760091) is an Oxford University Press publication.  I suspect the industry will hate it for reasons clear in this review.  I found it a refreshing examination of how copyright law as it currently exists has turned from a cultural tool that supports business to a purely business tool, culture be damned.  Members of Congress should read it.  Sadly, I know, they won’t.

Oxford supplied a copy of the book for review.  [MG]